EFF ready to sue if “innocent customers” can’t get Megaupload data back

The Electronic Frontier Foundation has at least one client who really wants …

The Electronic Frontier Foundation (EFF) today officially asked all parties involved in the Megaupload criminal case to refrain from deleting any data stored on servers once leased by the file-hosting service—and it suggested it was willing to sue over the matter.

In a letter (PDF) sent to the Eastern Virginia US Attorney's office and to lawyers for Megaupload, the EFF asks for all material on the servers to be retained "both for purposes of contemplated future litigation and as a matter of obligation and courtesy to the innocent individuals whose materials have unfortunately been swept up into this case."

When the government took down Megaupload on January 19 and asked New Zealand to arrest the site's top employees, it did so with no advance warning to people who used Megaupload for entirely legal purposes. As for getting data back now, the government says that it never actually seized the servers in question and that they are back under the control of the hosting company. Because the government seized most Megaupload assets, however, the site can no longer afford to pay for the servers, which could be wiped at any time (the main hosting company, Carpathia, has pledged not to do this without providing advance notice).

"In many instances, this material included protected expression under the First Amendment," says the EFF letter, "which raises additional concerns... We are hopeful that our client and other third parties can obtain access to their material without resorting to legal action, but if that is not the case, we intend to take the necessary steps to ensure the return of their materials."

The letter ends, however, on a more conciliatory note, stressing the EFF's willingness to work with the government to devise a protocol for getting data back to "innocent customers" in these kinds of cases going forward.

Oh come on, Megaupload was a way to monetize p2p copyright infringement. I would say, at most, 0.5% of the files held were legit.

As Roken quite rightly said, MU never guaranteed data retention. As for the 1st amendment breach, give me a break, that's really stretching it a bit.

How exactly does someone switching a server off breach your 1st amendment rights?? I mean, really. Especially given that MU was a method for sharing files, I would have hoped that didn't mean the people deleted the original from their computers, or they don't have a backup copy. The 1st amendment should not be used in this way, the EFF are walking right into the PIPA advocates trap by pursuing this, IMHO.

I think the EFF should look into whether the government's attorney(s) committed an ethics violation in their letter which stated "It is our understanding that the hosting companies may begin deleting the contents of the servers beginning as early as February 2, 2012." The use of the MAY raises questions. Does the word MAY mean that the government is granting permission to the hosting companies to delete the data, or merely recognizing the possibility that the data might be deleted? A follow up question is whether the lawyer involved intentionally used the word MAY because it could be seen as a directive to the hosting company but still provide the lawyer with wiggle room over the actual meaning.

Ethics rules vary by jurisdiction, but most are based on the model rules of professional conduct. The relevant rule is 3.4:

A lawyer shall not:(a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

Rather than drafting a letter that could be interpreted as permitting or even instructing a third party to destroy evidence, a responsible attorney would have instead stated something like the following: The third party hosting companies should seek their own legal advice and the opinion of the judge regarding any obligation to preserve the defendant's data.

Oh come on, Megaupload was a way to monetize p2p copyright infringement. I would say, at most, 0.5% of the files held were legit.

As Roken quite rightly said, MU never guaranteed data retention. As for the 1st amendment breach, give me a break, that's really stretching it a bit.

How exactly does someone switching a server off breach your 1st amendment rights?? I mean, really. Especially given that MU was a method for sharing files, I would have hoped that didn't mean the people deleted the original from their computers, or they don't have a backup copy. The 1st amendment should not be used in this way, the EFF are walking right into the PIPA advocates trap by pursuing this, IMHO.

MegaUpload wasn't exactly p2p. I'm not too sure about 1 amendment right but through actions of the government, they effectively seized property from people who didn't commit any crime. MU never guaranteed data retention but that doesn't mean the government can seize it willy-nilly.

And of course, even if the rate of legally held property was 0.5%, it's 0.5% that the government seized. It's perfectly understandable to ask legally stored property back. Heck, if the item was of commercial value, I wouldn't rule out asking for damages on "potentially lost" profit.

As a member of XDADevelopers.com, I know for a fact that ROM's compiled under AOSP and even CM based ROM's were uploaded to MegaUpload. Those ROM's aren't copyright infringment and now many people (including some Devs??) can't access those ROM files.

I would really like to hear direct quotes from MegaUpload customers saying "Yes, I uploaded files to MegaUpload and deleted all other copies. If the MegaUpload servers are wiped, I will suffer irreparable loss."

"It is our understanding that the hosting companies may begin deleting the contents of the servers beginning as early as February 2, 2012." The use of the MAY raises questions. Does the word MAY mean that the government is granting permission to the hosting companies to delete the data, or merely recognizing the possibility that the data might be deleted?

Since MU's assets have been seized / frozen, it's reasonable to think that any recurring bills will not be paid. So their hosts will quite reasonably delete the data which they are no longer being paid to store.

whquaint wrote:

I would really like to hear direct quotes from MegaUpload customers saying "Yes, I uploaded files to MegaUpload and deleted all other copies. If the MegaUpload servers are wiped, I will suffer irreparable loss."

I would really like to hear direct quotes from MegaUpload customers saying "Yes, I uploaded files to MegaUpload and deleted all other copies. If the MegaUpload servers are wiped, I will suffer irreparable loss."

letter states at least one person complained (read one.)

it also states they are legally entitled to access, preservation and privacy of their data which i am not sure if thats true. seems fishy that you are purchasing legal rights from MU.

also not sure about the first amendment coming into play with allocated hard drive space.

The way I see it, it's like if the government cracked down on a mafia group and all their businesses used for money laundering. Imagine the mafia ran a dry cleaner that was used to launder money and serve legitimate customers as a real dry cleaning service at the same time. Sure, the business gets shut down with the mob, and the building returns to the bank. Do the legitimate customers get their clothes back, or does the government say to the bank "You may begin burning the clothes as early as XX/XX/XXXX" and leave it at that?

Yes,I to want to know what the legal situation is regarding this material.What I see here is not all that diffrent from a situation such as the dry cleaner or for instance a U-store it place that might have been siezed by the government.

What rights do you have as a customer of that service to the return of your items and any fees you may have payed in advanced why is it diffrent just because your items are digital?

Also what does the first amendment have to do with this? It doesn't apply to private companies.

The First Amendment may (IANAL) apply because it was the government who caused all of this. If it were a private company doing this of their own volition, invoking the First Amendment would be laughable. In this case, I can definitely see a point.

I think Caveat Emptor is the phrase you're looking for. No informed consumer would mistake Megaupload for a service that was completely on the level.

1. Not everyone is informed.2. Even if they were, It doesn't change the facts that anyone who used it for legit purposes had their propety seized and not returned in prompt fashion.

Just curious, and tossing a bone to gnaw on. People who had files stored at Megaupload own property there, yet downloading MP3's isn't taking someone elses property?

As a caveat my income is mostly from book sales. I write for a living, and if they don't sell I make no money. So I consider the books I write to be my property. I certainly put enough time and effort into them. I am also smart enough to keep backups in a few places. If my house burns down, or my onlne storage gets raided I still have all my files.

Yes,I to want to know what the legal situation is regarding this material.What I see here is not all that diffrent from a situation such as the dry cleaner or for instance a U-store it place that might have been siezed by the government.

What rights do you have as a customer of that service to the return of your items and any fees you may have payed in advanced why is it diffrent just because your items are digital?

The way I see it, it's like if the government cracked down on a mafia group and all their businesses used for money laundering. Imagine the mafia ran a dry cleaner that was used to launder money and serve legitimate customers as a real dry cleaning service at the same time. Sure, the business gets shut down with the mob, and the building returns to the bank. Do the legitimate customers get their clothes back, or does the government say to the bank "You may begin burning the clothes as early as XX/XX/XXXX" and leave it at that?

I have an acquaintance who's brand new vehicle was involved in an armed robbery where a gun was discharged. The vehicle was hit by the bullet and was seized by the police as evidence. The vehicle has been sitting in the police impound for years. He'll get it back (actually the bank will because I think he stopped making the payments) once the case is resolved. Not exactly an apples to apples comparison but it shows that life sucks.

I think Caveat Emptor is the phrase you're looking for. No informed consumer would mistake Megaupload for a service that was completely on the level.

1. Not everyone is informed.2. Even if they were, It doesn't change the facts that anyone who used it for legit purposes had their propety seized and not returned in prompt fashion.

I am sorry but how do you piricy apologist say such things with a stright face?

The servers where turned back over to their owners Carpathia like 3 days after the warrent was executed. That is beyond prompt. The courts would have given them a few months if needed and they did it in less then a week. The Feds are clear now its on Carpathia and Megaupload to fix the mess that Megaupload got itself into. I mean what kind of business like this pays month to month anyways?

Also what does the first amendment have to do with this? It doesn't apply to private companies.

They're threatening to sue the federal government, not MU. The actions of the Federal government caused the loss of the files of innocent people, therefore the EFF and others believe that the federal government is responsible to fix that.

I think Caveat Emptor is the phrase you're looking for. No informed consumer would mistake Megaupload for a service that was completely on the level.

1. Not everyone is informed.2. Even if they were, It doesn't change the facts that anyone who used it for legit purposes had their propety seized and not returned in prompt fashion.

Just curious, and tossing a bone to gnaw on. People who had files stored at Megaupload own property there, yet downloading MP3's isn't taking someone elses property?

As a caveat my income is mostly from book sales. I write for a living, and if they don't sell I make no money. So I consider the books I write to be my property. I certainly put enough time and effort into them. I am also smart enough to keep backups in a few places. If my house burns down, or my onlne storage gets raided I still have all my files.

They are nothing at all alike. See in one case its ebil MPAAMAFIA FEDS FIAT MONEY 911 INSIDE JOB that did something pirates do not like.

On the other hand Information is free and belongs to the world because copyrights last to long, they would not have bought it anyways, new business model yo.

I think Caveat Emptor is the phrase you're looking for. No informed consumer would mistake Megaupload for a service that was completely on the level.

1. Not everyone is informed.2. Even if they were, It doesn't change the facts that anyone who used it for legit purposes had their propety seized and not returned in prompt fashion.

Just curious, and tossing a bone to gnaw on. People who had files stored at Megaupload own property there, yet downloading MP3's isn't taking someone elses property?

As a caveat my income is mostly from book sales. I write for a living, and if they don't sell I make no money. So I consider the books I write to be my property. I certainly put enough time and effort into them. I am also smart enough to keep backups in a few places. If my house burns down, or my onlne storage gets raided I still have all my files.

Sort of. UPLOADING MP3 is copyright infringement certainly. The property in question is right to distribute. In this case, government has taken the right for the property owner to download their property; which is also taking away distribution rights of the owner.

Your example is what you SHOULD be doing. I certainly do it with the applications I write (Just not on MegaUpload. I have it distributed across all fellow team members.) But should be doing is different from what people actually does. If you are talking copyright infringement of your books, it's someone taking the manuscript (ie rogue publishers) and selling it or even parts of it without your prior consent. At least that's the definition I was taught during my Uni days. Lot has changed since then.

Yes,I to want to know what the legal situation is regarding this material.What I see here is not all that diffrent from a situation such as the dry cleaner or for instance a U-store it place that might have been siezed by the government.

What rights do you have as a customer of that service to the return of your items and any fees you may have payed in advanced why is it diffrent just because your items are digital?

tc

A million times this.

It would go down very similar to this. U store gets raided for running drug storage center. Assist froze etc. Everything turned over to the land owner assuming not U Store and its now their problem.

I think Caveat Emptor is the phrase you're looking for. No informed consumer would mistake Megaupload for a service that was completely on the level.

1. Not everyone is informed.2. Even if they were, It doesn't change the facts that anyone who used it for legit purposes had their propety seized and not returned in prompt fashion.

Just curious, and tossing a bone to gnaw on. People who had files stored at Megaupload own property there, yet downloading MP3's isn't taking someone elses property?

As a caveat my income is mostly from book sales. I write for a living, and if they don't sell I make no money. So I consider the books I write to be my property. I certainly put enough time and effort into them. I am also smart enough to keep backups in a few places. If my house burns down, or my onlne storage gets raided I still have all my files.

They are nothing at all alike. See in one case its ebil MPAAMAFIA FEDS FIAT MONEY 911 INSIDE JOB that did something pirates do not like.

On the other hand Information is free and belongs to the world because copyrights last to long, they would not have bought it anyways, new business model yo.

OK, very lame. While I will agree that everyone who steals MP3's would have bought them otherwise, it is equally foolish to suggest that nobody would have. If you did not develop the information, whether a song, book, painting, picture or anything else you do not have a *right* to it. Go out and actually create something of value, then tell me how it makes you feel when it is stolen.

Also what does the first amendment have to do with this? It doesn't apply to private companies.

They're threatening to sue the federal government, not MU. The actions of the Federal government caused the loss of the files of innocent people, therefore the EFF and others believe that the federal government is responsible to fix that.

The problem as I see it is the government isn't denying anyone their stuff. So what are the legal grounds for suing them? Especially on a first amendment basis.

And this is why the "cloud" is not a backup solution. If my data was on MU, you better believe it's stored in several other locations as well if it's important to me.

Your point has nothing to do with the "cloud" and everything to do with having multiple backup locations. The "cloud" is perfectly viable as one of your backup locations, and realistically it's a good choice even if you're only going to use one backup location.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I would really like to hear direct quotes from MegaUpload customers saying "Yes, I uploaded files to MegaUpload and deleted all other copies. If the MegaUpload servers are wiped, I will suffer irreparable loss."

Not saying the guy was bright - but he did lose his life's work apparently. Not sure why anyone in their right mind would ever upload all of their personal work to a website, and then delete all local copies. That is insanity.

How exactly does someone switching a server off breach your 1st amendment rights?? I mean, really. Especially given that MU was a method for sharing files, I would have hoped that didn't mean the people deleted the original from their computers, or they don't have a backup copy. The 1st amendment should not be used in this way, the EFF are walking right into the PIPA advocates trap by pursuing this, IMHO.

MU WAS some people's backup. I use SpiderOak, some used MU. If political spending is protected by the First Amendment, then certainly this is in the First Amendment ballpark. Taking a server off line is like smashing a printing press. In this case the Fed's smashed a printing press that had, at least, some non-infringing uses. Sure, it's more work to track down actual illegal activity than take down a whole site, but that's precisely the point.

It's happened that the Feds have seized a server that hosted many virtual sites, most legitimate, with one or more allegedly violating the law. I submit that it's wrong to take down a whole server or service for SOME potentially infringing content.

The point here is MU is innocent until proven guilty and seizing (well, taking off-line) their servers without warning and without a verdict is over-reaching.

Some companies want Youtube taken off-line for SOME infringing content.